E, a State X corporation, designed a building for Smith, a citizen of State Y, six years ago. Part of that building collapsed last year, causing damages in excess of $80,000.

Smith has filed an action against E in the U.S. District Court in State X, alleging that his damages resulted from the negligent design of the building. E filed an answer denying negligence and asserting as an affirmative defense that the statute of limitation for negligence is two years.

At the time the building was being constructed, Jones, an attorney and member of E’s board of directors, who occasionally handled legal matters for E, prepared and sent the following memorandum to the president of E:

“I have been informed by Tom Withers, an architect who used to work for E, that the materials being used by the contractor, Builder Corp., in constructing the building are substandard.”

Smith filed a timely motion for the pre-trial production of the Jones memorandum. The motion was denied. Smith filed a timely motion for summary judgment, relying on an affidavit made by Withers that set forth facts consistent with Jones’ memorandum. E also filed a motion for summary judgment, accompanied by an affidavit that the building had been constructed six years ago. Both motions were denied.

If E asserted the work product privilege in response to Smith’s motion for production of Jones’ memorandum, who would prevail?